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[2018] ZAGPJHC 654
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Petersen NO and Others v Collopen (15869/2018) [2018] ZAGPJHC 654 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 15869/2018
In
the matter between:
IZAK
SMOLLY PETERSEN
N.O. First
Applicant
&
Three
Others Third
to Fourth Applicants
and
ARNOLD MANIKUM ROY
COLLOPEN Respondent
J U D G M E N T
BADENHORST
AJ:
[1]
The applicants make application for summary
judgment against respondent, who stood surety for the obligations of
The Board Junction
(Pty) Limited arising from a written agreement of
lease which was signed by the tenant on 30 May 2014.
[2]
The suretyship relied on by the applicants
(plaintiffs) is dated
28
May 2014
.
[3]
Clause 11 (a) of the suretyship provides as
follows:
“
the
amount of the debtor’s indebtedness and of me/us hereunder to
the creditor/s at any time and the fact that the due date
of payment
of the whole, or as the case may be, portion of such amount has
arrived,
shall be determined
and proved by a certificate
signed by a director, company secretary, credit manager or internal
accountant of the creditor/s or of the agent of the creditor/s
.”
[emphasis added]
[4]
The applicants, as they are required in
terms of the suretyship, rely on a certificate dated 19 April 2018.
The signatory certifies
an amount owing and payable the respondent
“in respect of a suretyship agreement dated
24
May 2014
”.
[5]
Besides a number of other defences, the
respondent takes the point that the certificate – which is an
essential part of plaintiffs’
cause of action – does not
certify any amount owing and payable in terms of the correct
suretyship (dated, not 24 May 2014
but 28 May 2014.
[6]
The principle which applies in proceedings
of the present kind is expressed as follows in First National Bank of
SA Ltd v Myburgh
2002 (4) SA 176
(C):
“
[9]
Because of the drastic nature of the relief sought, the Court has, in
terms of Rule 32(5), a discretion to grant the defendant
leave to
defend the action even where he has failed to comply with Rule
32(3)(b).
The Court will grant
summary judgment where plaintiff has an unanswerable case. If
the Court has the slightest doubt, the
Court will not grant summary
judgment
. (Fourlamel (Pty) Ltd v
Maddison
1977 (1) SA 333
(A) at 347H; Gilinski v Superb
Launderers And Dry Cleaners (Pty) Ltd
1978 (3) SA 807
(C) at
811E - H.)”
[emphasis added]
[7]
It may well be that the date stated in the
certificate is a mere typographical error, but I cannot exclude “
the
slightest doubt
” as to whether
the case against respondent is unanswerable.
[8]
It follows that on this point summary
judgment cannot be granted. It is thus not necessary to consider the
rest of respondent’s
defences.
[9]
I accordingly make the following order:
(a)
The application for summary judgment is
refused and the respondent (second defendant) is granted leave to
defend the main action.
(b)
The costs of the summary judgment
proceedings will be costs in the cause.
_______________________
CHJ
BADENHORST AJ
Acting
Judge of the High Court of South Africa,
Gauteng
Local Division
APPEARENCES
For
the applicant: Mr J.G. Dobie
Instructed
by: Alan Levy Attorneys
For
the respondent: Mr R.J. Bouwer
Date
of hearing: 11 December 2018
Date
of judgment: 13 December 2018